Jon Qwelane via Daily Maverick

by Adv. Nadene Badenhorst, Legal Counsel of FOR SA

After many years, the controversial case of Qwelane v Minister for Justice & Others finally came before the Johannesburg High Court (Equality Court) over the past two weeks.

The case concerns an article written by columnist Jon Qwelane in the Sunday Sun newspaper in 2008, under the heading “Call me names, but gay is not okay …”. (According to Qwelane, while the content of the article was his own, he was not involved in or responsible for either the heading to the article which was the editor’s choice; or the cartoon that accompanied the article and depicted a man getting married to a goat).

In the article, Qwelane said he had “serious reservations about their [referring to people who practice homosexuality] lifestyle and sexual preferences” and that “wrong is wrong”. He also wrote that, while he could take issue with Zimbabwean President Robert Mugabe on a few things, “his unflinching and unapologetic stance over homosexuals is definitely not among those.” Qwelane’s article was based on his strong moral belief that having homosexual relationships is not “the natural order of things”, and further suggested that the compromising of morals could lead to a future in which it might be legal for “some idiot” to “marry” an animal.

The South African Human Rights Commission (SAHRC) who instituted the initial case against Qwelane, claims that (certain portions of) his article are “hurtful” or “harmful” to the LGBT community, and for this reason amount to “hate speech” in terms of the Equality Act, 2000. The SAHRC is asking the Court to order that Qwelane should apologise to the LGBT community in South Africa; pay R100,000 damages to a campaign promoting LGBT awareness; and (at Qwelane’s cost) undergo “sensitisation training” with an organisation appointed by the SAHRC for this purpose.

On the merits, Qwelane denies that his article amounts to “hate speech” and argues that freedom of speech is not limited to an opinion that can be classified as politically correct. He contends that if journalists are swayed by external opinions, they will no longer be acknowledged as an independent and reliable source of information. Although it is true that critical opinions might offend a group of people, he asserts that readers deserve to hear them and to have the opportunity to make up their own minds. (In this regard, Qwelane also relies on the finding that the Press Council had already made with regard to his article – namely that while the article may amount to “robust” speech, it does not go so far as “hate speech”).

In addition, Qwelane has raised a constitutional issue – namely that the prohibition of “hate speech” in the Equality Act, is broader than the prohibition of “hate speech” in the Constitution, and is for that reason unconstitutional.

The Court will therefore essentially have to decide two questions:

  1. Did Qwelane’s article amount to “hate speech” in terms of the Equality Act (i.e. the trial component); and
  2. Is the “hate speech” provision in the Equality Act, over-broad and unconstitutional (i.e. the application component)?

The Freedom of Expression Institute, and the Psychological Society of South Africa, have joined the case as “Friends of the Court”.

Importance of the case

 The case is important in that it will determine the boundary between free speech (that may be offensive but not necessarily amount to “hate speech”), and “hate speech” in the legal sense of the word – particularly in the context of speech that expresses moral disapproval of same-sex relationships.

Although Qwelane does not specifically rely on the constitutional right to freedom of religion, belief and opinion (which includes the right to speak, whether verbally or in writing, what it is one believes), the outcome of his case may very well have an impact on the right of South Africans to freely and without fear of harassment or punishment, speak out their religious or moral convictions with regard to issues of human sexuality. While the Court will of course consider the specific circumstances of the case (including the specific words written by Qwelane, the context in which it was written, the audience for whom it was written and how the article would reasonably have been interpreted by them, etc), the case will give some indication as to where the boundaries lie in this regard.

Pushing to broaden the definition of “hate speech”

While “hate speech” is narrowly defined in s 16(2)(c) of the Constitution (requiring both an “advocacy of hatred” and “an incitement to cause harm”, before speech will qualify as such), and has to this point been narrowly interpreted by our Courts, there is a constant push to broaden the definition, and lower the threshold, of “hate speech” in our law.

In terms of section 10(1) of the Equality Act, “hate speech” is defined as speech, based on certain characteristics of a person, that “could reasonably be construed to demonstrate a clear intention to be hurtful” – irrespective of whether it also amounts to an “advocacy of hatred” and “an incitement to cause harm”. (As already explained, whether or not this broader definition of “hate speech” is constitutional, is one of the very questions that the Court will have to grapple with in this case).

The recently published draft Prevention and Combating of Hate Crimes and Hate Speech Bill (“the Hate speech Bill”) proposes an even broader definition of “hate speech”, and includes in its scope communication which “is threatening, abusive or insulting towards any other person or group of persons, and which demonstrates a clear intention … to … bring into contempt or ridicule, any person or group of persons” based on certain characteristics (s 4(1) of the Bill).

In our written submissions on the Bill, FOR SA commented that the proposed definition of “hate speech” in the Bill is overbroad and unconstitutional. We referred the Department of Justice to the (then upcoming) Qwelane case and submitted that, in order to avoid unnecessary expenditure of money, time and effort, it was prudent that further consideration of the “hate speech” component of the Bill, stand over until such time as the Court has settled the constitutional limits of “hate speech” in that case and which will in turn inform this Bill.

The dangers of a broad definition

In our submissions on the Hate Crimes and Hate Speech Bill further, FOR SA commented that the overbroad definition of “hate speech” in the Bill poses a severe threat not only to freedom of speech, but to religious freedom in that it could be employed to muzzle (and/or have the unintended effect of muzzling) believers across different faith groups from expressing their sincerely held moral or religious convictions or beliefs. We commented that it is very possible, as experience has already shown, that the expression of these beliefs may be (mis)interpreted by those who hold to different convictions and beliefs, as “threatening, abusive of insulting” and intending to “bring [them] into contempt or ridicule”.

Qwelane is a case in point. In this case, the SAHRC this week (and on the basis of the “hate speech” definition in the Equality Act) argued before the Court that:

In our submissions also, we stated that experience in the USA, UK and other Western democracies has shown that liberal activists, driving anti-religion and anti-natural family agendas, frequently employ “hate speech” laws to hinder or stop the teaching, preaching and publishing of religious content which they regard as unfavourable, offensive or “harmful” to their cause.

Again, last week’s conviction of two Christian preachers in the UK for the “crime” of stating that Jesus is the only way to God, is a case in point. In this case, the two street preachers were arrested and charged with a Public Order offence after a public prosecutor claimed that publicly quoting parts of the King James Bible in modern Britain should “be considered to be abusive and is a criminal matter“. The Bristol Magistrate’s Court has ordered Michael Overd and Michael Stockwell to pay £2,016 each, in fines and costs. (See http://www.christianconcern.com/our-concerns/freedom-of-speech/street-preachers-who-quoted-bible-convicted-in-modern-day-heresy-trial)

Conclusion

Qwelane is an important case for freedom of speech, and potentially also for religious freedom. While hatred of any person based on his/her sexual orientation or indeed any other characteristic, is wrong and indefensible (both from a legal, and a Biblical point of view), people should have the right to say what it is they believe – even if others do not agree with it, like it or find it offensive. Qwelane should have this right, and so should the LGBT society. It may well be true that there are better ways in which Qwelane could have expressed his beliefs and opinion, but the fact is that most (if not all) strong opinions are bound to be offensive to someone. That does not make it “hate speech”.

One can only hope that the High Court in this case will not be over-zealous in broadening the scope of “hate speech” in our law at the expense of freedom of speech, which is a cornerstone of our constitutional democracy. After all, section 16 of our Constitution guarantees the right to “freedom of expression” – not the right to “freedom from offence”.

*Note: FOR SA is not a party in, or otherwise involved in, the Qwelane case. We have however studied the papers and Heads of Argument filed by the parties and “Friends of the Court” in the matter, as well as the various news reports published in relation to this matter over the last two weeks.  

Having obtained a BA LLB degree from the University of Stellenbosch, Nadene was awarded a scholarship to study a LL M degree in International Human Rights Law at the University of Essex, United Kingdom which she obtained cum laude.

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